February 09, 2007

Douglas Litowitz on associates and his book

Douglas Litowitz, author of The Destruction of Young Lawyers, was kind enough to send along this interview about his book, which will have a second edition available on Amazon by March 1st. Below the fold is a longer piece he wrote on the topic.

I am the author of a controversial new book, The Destruction of Young Lawyers, which is my attempt to explain why lawyers in general – and young lawyers in particular – are chronically unhappy.For reasons set forth below, I lay blame with the structural features of the legal profession, especially the outmoded structure of law school, the pointless ritual of the bar exam, the ‘big-firming’ of the profession, the explosion of student debt, and the invasive nature of new technology.These structural features are so strong that they override the good intentions of virtually all young lawyers, crushing even the well-meaning and reflective among us. This is why college graduates come to law school full of hope and promise, but a decade later find themselves in debt, embittered, cynical, and trapped.

I don’t pretend that my book is the final word on lawyer unhappiness.I am one voice in a chorus of legal scholars who approach the problem from different angles.In what follows below, I want to differentiate my approach from that of other contributors, and show how their perspectives complement my own. We are all engaged in a common enterprise of reforming the profession to make it more humane.

As a starting point, we must face the disturbing evidence about lawyers and unhappiness.Although some old-timers refuse to face the facts, by now the evidence is irrefutable: lawyers are chronically unhappy by every conceivable standard.We know this from two types of sources.The first consists of hard data collected by bar associations, alumni surveys, law schools, and disciplinary boards.The data shows that the level of unhappiness has been growing steadily since the early 1990s and is now spiraling out of control.The second source of evidence comes from personal accounts of how the profession has become insufferable, as evidenced by a wave of new books decrying the profession as it currently exists.To my mind, the most revealing non-academic discussion of how the profession has declined can be found in a wonderful article by best-selling author Robert Kurson about his Harvard Law School graduating class (“Who’s Killing the Great Lawyers of Harvard,” Esquire Magazine, August 2000), where the author went back and talked to classmates who confessed their desires to quit their high-powered jobs in favor of . . .anything, even a menial life as a bookstore clerk or living in a cabin in the woods.More recently, former Supreme Court Justice Sandra Day O’Connor was shocked when attending her

Stanford

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alumni reunion to find that the vast majority of lawyers confessed that they would not be lawyers if giving the chance again.And the data also reveals that young lawyers now face demands that older lawyers could not imagine, in terms of working hundreds more billable hours than older lawyers had to work, tighter deadlines for turning around documents (hours instead of weeks), and being shut out from partnership unless the young lawyer already possesses a portable client base.

Once we accept the statistical data and the personal accounts of lawyer unhappiness, the task becomes how to account for it.And here is where legal scholars part company and adopt different perspectives.

Actually, there is a longstanding debate in the social sciences over how to explain any social phenomena, whether it be lawyer unhappiness, suicide, divorce rates, crime, or whatever.There are basically two ends of the explanatory spectrum.On one end are structuralists such as myself who downplay the role of the individual and instead argue that historical and social structures beyond the individual are to blame; on this approach, there is very little that an individual can do to escape unhappiness through a change in attitude or a change in practice, since the problems are deeper and therefore cannot be solved at the individual level.At the other end of the spectrum are those who we might call individualists, who argue that happiness or unhappiness are not rigidly determined by deeper social structures but instead can be altered by changes in cognitive style, attitude, practice, and values.

Speaking only for myself, I am a structuralist. What this means in simple terms is that I seek to identify the deepest structures of the profession (whether economic, political, institutional, or historical) that give rise to conflicts and tensions that play out in the surface phenomenon of lawyer unhappiness. This deep-structure approach has the advantage of explaining why so many well-intentioned lawyers find themselves caught or trapped in a system beyond their control – namely because the structures are indeed often beyond their control.Positive change is thus a matter of reconfiguring the underlying structure of the profession, not by adjusting the attitudes and lifestyles of individual lawyers.Accordingly, I call for structural changes such as eliminating the bar exam, eliminating the last year of law school, eliminating the billable hour, and subsidies for lawyers who help the poor.

I believe that the profession is structurally divided into two antagonistic classes: older lawyers and younger lawyers.This conflict gets played out when the older lawyers subject younger lawyers to a series of absurd, arbitrary, pointless rituals in order to become licensed, then have them work insane hours in cutthroat competition with little hope for partnership.All of the unnecessary burdens of the profession – such as the useless education, the absurd bar exam, the long path to partnership – fall upon the shoulders of young lawyers and were created and furthered by older lawyers out of pure greed and blind tradition.

I steadfastly reject the claim that the profession is being ruined due to ‘lack of professionalism’ – a tautologous claim that runs through most of the books written by older lawyers who pine for the good old days when lawyer-statesmen roamed the earth.I disagree that the profession is being degraded by young lawyers who might, with something like the touch of the steering wheel, realign the profession in pursuit of justice.Imagine a young lawyer strapped with outrageous debts, in an overcrowded market, emerging from a humiliating bar exam and an invasive character review, with no real skills and no experience with actual clients, thrown into a giant firm and told to succeed at any cost – this person has no leisure to behave like a Jeffersonian lawyer-statesman.Let’s face it: a person can only be a statesman if she has the power to walk away from undesirable tasks without being hurt, and young lawyers can’t afford to do that, so they end up doing what they are told, representing clients that they despise and which they consider immoral.And they do it to survive, not because they are bad people, but because the structures of the profession have left them with no other choices if they want to pay their bills and learn how to practice law.Just last week I had lunch with a former student whose situation is typical: he confessed to hating his job practicing insurance defense, and finds his clients immoral, but needs the job in order to pay his massive student loans.My point is not that insurance defense or corporate law is inherently evil (in fact, we need corporate lawyers just as we need public interest lawyers), but rather that the current range of choice is extremely narrow for most young lawyers, which means that many of them find themselves without alternatives but to perform work that they find alienating and morally repugnant.It is a question of structuring the profession so that young lawyers have autonomy and choices.

When I was writing The Destruction of Young Lawyers, I asked myself, “What are the current structures of the profession that breed unhappiness?”I identified five basic structures.

The first structural problem is law school.It is outrageously expensive, boring, and doesn’t teach concrete lawyering skills.The Socratic Method is a historical anomaly and by now a complete joke – even Socrates didn’t use it for teaching concrete doctrines, only for loose discussions.Law schools use the Socratic Method primarily because it is cheap and because it motivates by fear and humiliation, which is easier than motivating by inspiring people.A law student can go through his entire education without meeting a single client or drafting a key document, indeed without learning the court structure where he lives.The teacher-student relationship is regressed to the high school level, and the students are overly competitive.The grading bears no relationship to reality but is simply a method of dividing the students so that the top layer can be picked off by the powerful law firms who use the school like a kennel.There is a reason that law students are more depressed than medical and business students – their education is tedious and they spend all day reading appellate cases where people fought for years and could not resolve their differences without going to court.Law school should be two years long, students should be allowed to specialize very early, the grading should be limited to honors/pass/fail, the third year should be an apprenticeship, and the government should offer student loan amnesty for those who pursue public interest or government service.

The second structural problem is the bar exam.As bad as law school is, it only leads to the indignity of the bar exam, which is a totally pointless ritual of subjugation.The bar exam is a relatively new phenomenon, created mostly to block the entry of immigrants (especially Jews) into the formerly white profession.The current exam contains a mass-produced and computer-graded multi-state exam that cannot be readily transferred from one state to another.Thus the National Conference of Bar Examiners has created a Multi-State Exam which is neither national nor multi-state.Bar examiners in popular states keep raising the passing grades solely to keep more lawyers out of the profession, even while the American Bar Association keeps licensing new law schools that churn out more graduates.They do not see the irony in the fact that a good number of this year’s failures would have been licensed had they taken the exam two or three years ago, which means that this year’s failures are as ‘competent’ as lawyers currently licensed and practicing. Anyway, there is not a single shred of evidence to prove that the exam ensures competence of young lawyers.Further, the character and fitness review in most states is designed solely for intimidation and should be replaced with a quick criminal and credit check.The whole character review process has little purpose other than to make candidates disclose all their personal information even if it is totally irrelevant (such as where they lived for the past 10 years), while the character and fitness committees tend to focus on candidates who have done nothing more than see a therapist or support progressive political causes.The average passing score on the bar in most states is roughly the letter grade D, which means that the bar exam puts every candidate right on the precipice of failure, and uses the power of the organized bar to accost and humiliate candidates from ever questioning the licensing authorities.The whole thing is a grotesque charade that appears laughably ridiculous to any rational person other than the greedy lawyers and petty bureaucrats who sustain it.I argue that the bar exam should be abolished and replaced with a hands-on skills course that guides recent law graduates through the local court system, that familiarizes them with local pleading and practice requirements, schools them in basic document preparation, and teaches the nuts-and-bolts of law office management.

The third structural problem has to do with the big-firming of the profession.Law has devolved from a profession that had a business component to a business that has a law component.Law firms have grown to giant size with tentacles everywhere, vast global institutions containing thousands of people who have nothing in common except greed.In most firms, partnership is denied to all but a few who are willing to bill insane hours and attract clients.The equity partners are like a master-class while the young associates are like wage workers hired out by the partners.For young lawyers, law firms now resemble a treadmill going nowhere; many are so frustrated that they simply give up.Most of the work is tedious and painstaking, and the tasks are alienating and often morally repugnant.For most young lawyers at big firms, the litigation practice consists of insulating giant companies from lawsuits by delaying tactics that starve or harass the plaintiffs, while the transactional practice consists of coddling a board of directors and engaging in shell game transactions that are so complicated that even the regulators are incapable of following what is going on.The older lawyers, as a class, have interests that are antagonistic to younger lawyers.Consider that in the 1960s, a young lawyer could often work 1600 billable hours and make partner within 6 years; nowadays, the same lawyer would have to bill 2100 hours to make partner in 8 years, and then he would be a partner in name only until he brought in clients.This change does not help younger lawyers, but it helps older lawyers who profit from the work of younger ones.

One way out of this dilemma is to move away from billable hours, so that lawyers are not chained to the clock but can instead focus on tasks instead of billing.Another idea is to change law firm dynamics to make the path to partnership easier, and initiate a mentor-associate system where both the partner and the associate are judged together as a team instead of individually judging the associate.Young lawyers, too, must stop focusing on money so much, and should stop obsessing over which firm has a higher starting salary.Instead, they should focus on building their own firms, something that the

ABA

and the state bar should encourage with incentives.

A final structural problem on top of all this is the advance of technology which has transformed the practice of law into a 24-hour quickie-mart.The practice of law has been irrevocably changed for the worse by the rise of email, deal rooms, wireless devices, federal express, and so on.Nowadays, each lawyer tends to do his own secretarial work at his desk, while fielding calls, faxes, and endless emails, all with extreme time demands of turning documents around in a matter of hours.Technology was supposed to make us all closer by connecting everyone, but it had the reverse effect.Each lawyer is now a lonely monad, always on call and never fully away from the office.The so-called paperless office of the future was a cruel prediction that gave way to mountains of paper that grew so high we had to buy shredders. As a remedy, I suggest that young lawyers should cut their electronic umbilical cords each night and walk away.

When lawyers find themselves paralyzed and doing things that they despise, and for which they do not want to take ownership, they often engage in psychological splitting.In other words, they try to retain their self-respect by claiming that their professional actions are not reflective of their underlying selves but rather a role that they are forced to play, much like a gladiator who is thrown into the arena and forced to battle until death.This splitting mechanism between the true-inner-self and the false-outer-self naturally leads to dissociation and a growing sense of unreality about one’s character.There is nothing wrong with playing a role assigned by the profession, so long as the role is a reasonably adequate reflection of one’s underlying personality.Nowadays, too few lawyers find resonance between their inner selves and their external roles, with the result that most lawyers resolve this disconnection by either merging completely into their external roles, or withdrawing sullenly and disowning their professional behavior as if it were the actions of a stranger.The best situation is for a lawyer to be proud of her profession while also being a little bit ashamed of it, i.e., to retain proper critical distance.

All of these topics are treated at length in my book, The Destruction of Young Lawyers.Again, my point is that unhappiness is due to structural features of the profession which exist for the benefit of older lawyers at the expense of young lawyers.The profession has become split into two groups: older lawyers who cling to their clients and perpetuate (or create) obstacles to protect their territory, and young lawyers, who are increasingly indebted, desperate, and ripe for overworking.The profession cannot be healed until the interests of these two groups are somehow aligned.At a minimum, this requires changing the law school curriculum, reducing student debt, replacing the bar exam with a skills course, eliminating or reducing the billable hour, and creating alternatives to the mega-firms that dominate the legal landscape.

As noted earlier, I tend to focus on system-wide structural conflicts running through the profession.Because of this, I advocate structural change.But that still leaves open the question of how an individual lawyer should lead her life.What should her attitude toward practice be?How many hours should she work, and in what type of law firm structure?How important is success in winning every case, and how should the lawyer define success?To what extent can a young lawyer have a meaningful and fulfilling life? These important questions should occupy our thoughts. Please feel free to contact me with any of your thoughts and ideas.

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Douglas Litowitz on associates and his book

Douglas Litowitz, author of The Destruction of Young Lawyers, was kind enough to send along this interview about his book, which will have a second edition available on Amazon by March 1st. Below the fold is a longer piece he wrote on the topic.